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MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
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MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

  1. 1. Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 1 of 86 PageID #: 6274 Michael J. Green (HI Bar No. 4451) 841 Bishop Street, Suite 2201 Honolulu, HI 96813 Telephone: 808-521-3336 Facsimile: 808-566-0347 Email: michaeljgreen@hawaii.rr.com Nicholas C. Yost (CA Bar No. 35297) Matthew G. Adams (CA Bar No. 229021) Admitted pro hac vice SNR Denton US LLP 525 Market Street, 26th Floor San Francisco, CA 94105 Telephone: 415-882-5000 Facsimile: 415-882-0300 Email: nicholas.yost@snrdenton.com matthew.adams@snrdenton.com Attorneys for Plaintiffs UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII HONOLULUTRAFFIC.COM; CLIFF SLATER; BENJAMIN J. CAYETANO; WALTER HEEN; HAWAII’S THOUSAND FRIENDS; THE SMALL BUSINESS HAWAII Case No. 11-00307 AWT ENTREPRENEURIAL EDUCATION FOUNDATION; RANDALL W. ROTH; and DR. MEMORANDUM IN MICHAEL UECHI, SUPPORT OF PLAINTIFFS MOTION FOR SUMMARY Plaintiffs, JUDGMENT v. FEDERAL TRANSIT ADMINISTRATION; LESLIE ROGERS, in his official capacity
  2. 2. Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 2 of 86 PageID #: 6275 as Federal Transit Administration Regional Administrator; PETER M. ROGOFF, in his official capacity as Federal Transit Administration Administrator; UNITED STATES DEPARTMENT OF TRANSPORTATION; RAY LAHOOD, in his official capacity as Secretary of Transportation; THE CITY AND COUNTY OF HONOLULU; WAYNE YOSHIOKA, in his official capacity as Director of the City and County of Honolulu Department of Transportation. Defendants.
  3. 3. Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 3 of 86 PageID #: 6276 TABLE OF CONTENTS Page(s)I. INTRODUCTION .........................................................................................1II. FACTUAL BACKGROUND........................................................................2III. LEGAL BACKGROUND .............................................................................6 A. Section 4(f) ..........................................................................................6 B. NEPA...................................................................................................8 C. NHPA ..................................................................................................9IV. STANDARD OF REVIEW.........................................................................10 A. Summary Judgment...........................................................................10 B. NEPA, Section 4(f), NHPA, and the APA........................................10V. ARGUMENT...............................................................................................12 A. Plaintiffs Have Standing....................................................................12 B. Defendants’ Approval Of The Project Is A Final Agency Action Subject To Review Under The APA .....................................12 C. Defendants Violated Section 4(f)......................................................13 1. Defendants Failed To Identify And Evaluate The Project’s Use Of Native Hawaiian Burials And Other Traditional Cultural Properties Before Approving The Project (Count 5) ...........................................14 a) Defendants Failed Fully To Identify And Evaluate Iwi Kupuna Prior To Issuing The ROD, Thereby Violating Section 4(f) ..........................15 b) Defendants Failed Fully To Survey, Identify, And Evaluate TCPs Prior To Approving The Project, Thereby Violating Section 4(f) ...................................................................19 2. Defendants Arbitrarily And Capriciously Evaluated The Project’s Use Of Section 4(f) Resources (Count 6)................................................................21 a) Defendants Arbitrarily And Capriciously Determined That The Project Will Not Directly Use The Merchant Street Historic District ..........................................................................21 -i-
  4. 4. Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 4 of 86 PageID #: 6277 b) Defendants Arbitrarily And Capriciously Determined That The Project Will Not Constructively Use 4(f) Resources ...............................22 (i) Aloha Tower.......................................................23 (ii) Walker Park........................................................26 (iii) Merchant Street Historic District .......................28 (iv) Irwin Park ...........................................................30 (v) Mother Waldron Neighborhood Park.................32 c) Defendants’ Evaluation Of Makalapa Navy Housing Was Arbitrary And Capricious In Multiple Respects .........................................................34 d) Defendants’ Arbitrary And Capricious Use Determinations Were Not “Harmless Error”................37 3. Defendants Approved The Project In Violation Of Section 4(f) (Count 7) .............................................................37 a) Defendants Failed To Demonstrate The Absence Of Prudent And Feasible Alternatives To The Project’s Use Of 4(f) Resources ......................................................................38 (i) Managed Lanes Alternative ...............................41 (ii) Downtown Tunnel..............................................45 (iii) Alternative Transit Technologies .......................47 b) Defendants Failed To Include All Possible Planning To Minimize Harm........................................49 D. Defendants Violated NEPA ..............................................................51 1. Defendants Defined The Purpose And Need For The Project So Narrowly As To Preclude Consideration Of Reasonable Alternatives (Count 1) .............................................................................................51 2. Defendants Failed To Consider Reasonable Alternatives To The Project (Count 2) ...................................54 a) Defendants Impermissibly Relied On The City’s Early Planning Efforts .......................................56 b) Defendants Arbitrarily And Capriciously Refused To Consider The MLA ...................................59 - ii -
  5. 5. Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 5 of 86 PageID #: 6278 (i) The City’s Original Decision To Eliminate The MLA From Detailed Consideration Was Arbitrary And Capricious...........................................................59 (ii) Defendants’ Refusal to Reconsider The City’s Decision To Eliminate The MLA From Detailed Consideration Was Also Arbitrary And Capricious. .................62 c) Defendants Impermissibly Limited Their Consideration Of Alternatives To Steel Wheel On Steel Rail Technology .................................63 d) Defendants Impermissibly Refused To Consider Alternatives Requiring Action By The Honolulu City Council ..........................................65 3. Defendants Failed Properly To Evaluate The Environmental Consequences Of The Project And Alternatives Thereto (Count 3) ...............................................66 4. Defendants Impermissibly Segmented Their NEPA Analysis (Count 4) ..................................................................68 E. Defendants Violated NHPA ..............................................................71VI. CONCLUSION............................................................................................74 - iii -
  6. 6. Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 6 of 86 PageID #: 6279 TABLE OF AUTHORITIES Page(s)FEDERAL CASES‘Ilio’ulaokaokalani Coalition v. Rumsfeld 464 F.3d 1083 (9th Cir. 2006) ......................................................................54, 55Adler v. Lewis 675 F.2d 1085 (9th Cir. 1982) ............................................................................22Alaska Wilderness Recreation and Tourism Association v. Morrison 67 F.3d 723 (9th Cir. 1995) ....................................................................54, 58, 64Alpine Lakes Protection Society v. Schalpfer 518 F. 2d 1089 (9th Cir. 1975) ...........................................................................68Anderson v. Liberty Lobby 477 U.S. 242 (1986)............................................................................................10Benton Franklin Riverfront Trailway And Bridge Committee v. Lewis 701 F.2d 784 (9th Cir. 1983) ........................................................................19, 20Brooks v. Volpe 460 F.2d 1193 (9th Cir. 1972) ............................................................................22California v. Block 690 F.2d 753 (9th Cir. 1982) ..............................................................................56Celotex Corp. v. Catrett 477 U.S. 317 (1986)............................................................................................10Citizens to Preserve Overton Park v. Volpe 401 U.S. 402 (1971)....................................................................................6, 7, 11Corridor H Alternatives v. Slater 166 F. 3d 368 (D.C. Cir. 1999)...............................................................14, 19, 20Daly v. Volpe 514 F.2d 1106 (9th Cir. 1975) ............................................................................68 - iv -
  7. 7. Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 7 of 86 PageID #: 6280Davis v. Mineta 302 F.3d 1104 (10th Cir. 2002) ....................................................................51, 68Friends of the Earth v. Laidlaw Environmental Services 528 U.S. 167 (2000)............................................................................................12Friends of Yosemite Valley v. Kempthorne 520 F.3d 1024 (9th Cir. 2008) ......................................................................54, 55Hammond v. Norton 370 F. Supp. 2d 226 (D.D.C. 2005)....................................................................69Massachusetts v. E.P.A. 549 U.S. 497 (2007)............................................................................................12Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co. 463 U.S. 29 (1983).......................................................................................passimMuckleshoot Indian Tribe v. United States Forest Service 177 F.3d 800 (9th Cir. 1999) ..............................................................................66Named Individual Members Of San Antonio Conservation Society v. Texas Highway Department 446 F.2d 1021 (5th Cir. 1971) ...............................................................19, 70, 71National Parks & Conservation Association v. United States Department Of The Interior 606 F.3d 1058 (9th Cir. 2010) ...............................................................51, 52, 53Natural Resources Defense Council v. United States Forest Service 421 F.3d 797 (9th Cir. 2005) ........................................................................54, 61North Idaho Community Action Network v. United States Department of Transportation 545 F.3d 1147 (9th Cir. 2008) .....................................................................passimNorthern Plains Resource Council v. Surface Transportation Board 668 F.3d 1067 (9th Cir. 2011) ............................................................................10Ocean Advocates v. United States Army Corps of Engineers 402 F.3d 846 (9th Cir. 2004) ..............................................................................11 -v-
  8. 8. Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 8 of 86 PageID #: 6281Oregon Natural Desert Association v. Bureau of Land Management 625 F.3d 1092 (9th Cir. 2010) ............................................................................12San Carlos Apache Tribe v. United States 417 F.3d 1091 (9th Cir. 2005) ............................................................................10Sausalito v. O’Neill 386 F.3d 1186 (9th Cir. 2004) ............................................................................11Simmons v. United States Army Corps of Engineers 120 F.3d 664 (7th Cir. 1997) ..............................................................................52Southeast Alaska Conservation Council v. Federal Highway Administration 649 F.3d 1050 (9th Cir. 2011) ................................................................54, 61, 62Stop H-3 Ass’n v. Coleman 533 F.2d 434 445 (9th Cir. 1976) .......................................................................22Thomas v. Peterson 753 F. 2d 754 (9th Cir. 1985) .............................................................................68Valley Community Preservation Commission v. Mineta 373 F.3d 1078 (10th Cir. 2004) ....................................................................14, 20FEDERAL STATUTES5 U.S.C. § 704....................................................................................................12, 135 U.S.C. § 706....................................................................................................11, 1316 U.S.C. § 470f.........................................................................................................923 U.S.C. § 139.................................................................................................passim42 U.S.C. § 4332(2) ..........................................................................................passim49 U.S.C. § 303(c) ............................................................................................passimOTHER STATE STATUTESHaw. Rev. Stat. § 13-300-21....................................................................................15OTHER AUTHORITIES23 C.F.R. § 771.135(i) ...............................................................................................8 - vi -
  9. 9. Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 9 of 86 PageID #: 628223 C.F.R. § 771.135(b) ..............................................................................................723 C.F.R. § 774.3 ..............................................................................................passim23 C.F.R. § 774.7 .........................................................................................39, 40, 4423 C.F.R. § 774.9 ...................................................................................13, 14, 20, 2223 C.F.R. § 774.11 ............................................................................................passim23 C.F.R. § 774.15 ............................................................................................passim23 C.F.R. § 774.17 ............................................................................................passim36 C.F.R. § 60.4 .......................................................................................................1536 C.F.R. § 800.4 .....................................................................................................2036 C.F.R. § 800.5 ...................................................................................10, 71, 72, 7336 C.F.R. § 800.6 ...............................................................................................10, 7336 C.F.R. § 800.8 .....................................................................................................2036 C.F.R. § 800.16 ...................................................................................................7140 C.F.R. § 1500.1 .................................................................................................8, 940 C.F.R. § 1505.2 ...................................................................................................1340 C.F.R. § 1502.4 .............................................................................................68, 6940 C.F.R. § 1502.10 ...................................................................................................940 C.F.R. § 1502.13 .......................................................................................8, 51, 5240 C.F.R. §1502..14 ..........................................................................................passim40 C.F.R. §1502.16 ....................................................................................8, 9, 66, 6740 C.F.R. § 1506.1 .....................................................................................................940 C.F.R. § 1508.7 .....................................................................................................940 C.F.R. § 1508.8 .....................................................................................................9 - vii -
  10. 10. Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 10 of 86 PageID #: 6283 40 C.F.R. § 1508.25(a)(1) ............................................................................68, 69, 70 46 Fed. Reg. 18026, 18027 (Mar. 17, 1981)........................................................8, 66 73 Fed. Reg. 13368 (March 12, 2008) .........................................................23, 39, 44 Fed. R. Civ. P. 56 .....................................................................................................10 - viii -
  11. 11. Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 11 of 86 PageID #: 6284I. INTRODUCTION This is a case in which the law to be applied is as simple as the administrative record is long. In enacting Section 4(f) of the Department of Transportation Act (“Section 4(f)”), the National Environmental Policy Act (“NEPA”), and the National Historic Preservation Act (“NHPA”), Congress has clearly required that agencies must identify, evaluate, disclose, and, in some cases, avoid the environmental impacts of major projects like the one at issue in this litigation. But in their zeal to construct the Honolulu High- Capacity Transit Corridor Project — an elevated heavy rail line1 considered to be the largest public works project in the history of Hawaii — Defendants have violated those requirements in an equally clear fashion. Pursuing their ill-conceived course of conduct, Defendants managed to violate three of the bedrock statutory embodiments of America’s system of environmental protection: • Defendants violated Section 4(f) by ignoring their responsibility to identify historic resources and parklands potentially affected by the Project, by improperly evaluating the resources they couldn’t 1 The Project is no ordinary rail line. Its primary component is a concrete viaduct known as a “fixed guideway,” which is proposed to be approximately 35 to 50 feet tall (roughly the same height as a 3 or 4 story building). AR 000247 at 000338-64. The guideway would run through the historic waterfront core of downtown Honolulu and west to a small, agricultural community known as Kapolei, creating a massive concrete barrier along the entire route. Other components of the project include 21 new rail stations (each the height of a 6 story building), four “transit centers” (combined bus and train stations), approximately 40 acres of parking lots, and a 44-acre industrial facility for railcar maintenance and storage. Id. -1-
  12. 12. Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 12 of 86 PageID #: 6285 conveniently ignore, and by inaccurately, arbitrarily, and capriciously concluding that they had no choice but impact highly sensitive historic areas in Honolulu’s downtown core in direct contravention of Section 4(f)’s substantive mandate to avoid such sites if feasible and prudent alternatives exist, which they do. • Defendants’ violations of NEPA also center on alternatives: They structured their statement of project purpose so narrowly as to preclude consideration of reasonable alternatives; they failed rigorously to explore any of the scores of reasonable alternatives to the Project; they failed properly to evaluate the environmental consequences of alternatives; and they impermissibly segmented the Project into smaller pieces so as to prevent an analysis of the true impacts of and alternatives to Honolulu’s proposed rail system. • Defendants violated NHPA by failing to address the possibility that the Project would indirectly affect historic resources by leading to the demolition and/or redevelopment of historic areas near new rail stations, a possibility that was well-known to them throughout their consideration of the Project. • With respect to all three statutes, the Federal defendants improperly abdicated their statutory responsibilities to the City. Accordingly, for the detailed reasons set forth below, Plaintiffs are therefore entitled to summary judgment.II. FACTUAL BACKGROUND The Project has been characterized by complex paperwork and strong disagreement. But the underlying material facts are neither complicated nor subject to dispute. -2-
  13. 13. Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 13 of 86 PageID #: 6286 The City has long sought to develop a rapid transit system linking the historic core of Honolulu with a predominantly-agricultural area known as Kapolei. AR 000247 at 000293-95. In 2003, the City and FTA issued an Environmental Impact Statement evaluating different options for such a system. AR 047927 at 047953-80. Ultimately, the City and FTA concluded that a Bus Rapid Transit (or “BRT”) system would provide the best approach to transit within the Honolulu-Kapolei corridor. Id. Two years later, however, the City changed its focus to the development of a different transit system. With that goal in mind, the City undertook an Alternatives Analysis or “AA.” AR 000247 at 000295-96; AR 009434- 009555. The AA included a screening process designed to identify a range of reasonable transit alternatives. Id.; 009556-683. The City identified a number of feasible transit technologies as well as more than 75 possible transit routes. Id. The City then selected its preferred options from among the identified alternatives. AR 000247 at 000296; AR 009434 at 009537-49. Options not selected were eliminated from further consideration. Options eliminated from consideration included bus rapid transit, a system of “managed lanes” (essentially, express lanes for buses and high-occupancy vehicles), ferries, and all but two of the 75 identified transit routes. AR 000247 at 000319-27. -3-
  14. 14. Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 14 of 86 PageID #: 6287 The City documented its analyses and conclusions in a series or reports, memoranda, and technical studies. AR 009434-009555; AR 009556-009683; AR 049484-731. These documents do not reflect any significant involvement or guidance by the FTA. Id. After eliminating from consideration most of the alternatives identified in the AA, the City announced a plan to prepare (together with FTA) an Environmental Impact Statement (“EIS”) pursuant to NEPA. AR 009696 - 009699. The announcement indicated that the EIS would evaluate three alternatives: (1) an alternative consisting of an elevated fixed guideway transit system following a route from East Kapolei to Ala Moana Center, (2) an alternative consisting of an elevated fixed guideway transit system following that same route except with a connection to the airport, and (3) a “no build” alternative. AR 009696 at 9698. The announcement also noted that the Draft EIS “would consider five distinct transit technologies: Light rail transit, rapid rail transit, rubber-tired guided vehicles, a magnetic levitation system, and a monorail system.” Id. In 2008, the City convened a Panel of Experts to provide recommendations for choosing among these five technologies. AR 000247 at 000331. By a four-to-one vote, the City’s experts “selected steel wheel operating on steel rail as the technology for the Project to be considered in [the City’s and FTA’s] EIS.” Id. In other words, the City eliminated the other -4-
  15. 15. Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 15 of 86 PageID #: 6288 transit technologies. There is no record of FTA having participated in the vote. After eliminating from all transit technologies except “steel wheel on steel rail” from consideration, the City (now jointly with FTA) released a Draft EIS for public review and comment. AR 000247 at 000331; AR 007223. The Draft EIS evaluated four alternatives: (1) an elevated heavy rail (steel wheel on steel rail) line following a route from East Kapolei to Ala Moana Center, (2) an elevated heavy rail (steel wheel on steel rail) line following the same route from East Kapolei to Ala Moana Center except with a detour to the airport, and (3) an elevated heavy rail line from East Kapolei to Ala Moana Center incorporating both of the first two routes, and (4) no action. See AR 000247 at 000331-337. The City and FTA received hundreds of comments on the Draft EIS (“DEIS”). AR 000247 at 000855 to 004076. Many commenters requested that the agencies reconsider alternatives which had been eliminated from consideration during the AA or by the City’s panel of experts. The City and FTA did not reconsider those alternatives. See, e.g., AR 000247 at 002018-31 (requesting reconsideration of managed lanes), 002087-93 (no reconsideration). The City and FTA then prepared a Final EIS (“FEIS”). See AR 000247. The FEIS contained the same alternatives as the DEIS. AR 000247 at 000331- -5-
  16. 16. Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 16 of 86 PageID #: 6289 338. Because the Project implicates the requirements of Section 4(f) of the Department of Transportation Act (“Section 4(f)”), the FEIS also contained an evaluation of the Project’s potential to take or “use” land from historic resources and/or public parks (“4(f) Resources”). AR 000247 at 000680. The 4(f) Evaluation concluded that the Project would, in fact, use historic resources in downtown Honolulu, including the Chinatown Historic District. AR 000247 at 000718-27. As part of their approval of the Project, FTA and the City issued a finding declaring that there are no alternatives to the use of downtown Honolulu’s 4(f) Resources. AR 000030 at 000041-42. Plaintiffs then filed suit.2III. LEGAL BACKGROUND A. Section 4(f) Section 4(f) declares a national policy that “special effort should be made to preserve…public park and recreation lands…and historic sites.” See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 404-06 n.1-2 (1971) (discussing policy and purpose of Section 4(f)). Under this policy, Section 4(f) resources (including, as relevant here, both parks and historic sites) are “to be 2 Plaintiffs timely filed their original complaint on May 12, 2011. On December 30, 2011, Plaintiffs requested leave to file an amended complain. Plaintiffs’ First Amended Complaint would add as a party The Outdoor Circle, a non-profit environmental organization. The First Amended Complaint would not make substantive changes; therefore, the arguments in this Motion for Summary Judgment are equally relevant to either version of the complaint. -6-
  17. 17. Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 17 of 86 PageID #: 6290 given paramount importance.” Citizens to Preserve Overton Park, 401 U.S. at 412-13. But Section 4(f) is not merely declaration of policy. It imposes a substantive mandate on federal decisionmakers. See 49 U.S.C. § 303(c); Citizens to Preserve Overton Park, 401 U.S. at 411; North Idaho Community Action Network v. United States Department of Transportation, 545 F.3d 1147, 1158 (9th Cir. 2008).3 Specifically, Section 4(f) prohibits federal agencies from funding or approving transportation projects requiring the use of a park or historic site unless (1) there is “no prudent and feasible alternative” and (2) the project includes “all possible planning to minimize harm.” 49 U.S.C. § 303(c). The Supreme Court has characterized this mandate as “a plain and explicit bar” to the use of federal funds for project impacting Section 4(f) resources. Citizens to Preserve Overton Park, 401 U.S. at 411.4 Federal agencies are required to implement Section 4(f) by surveying, identifying, and evaluating parks and historic sites. See N. Idaho Community Action Network, 545 F.3d at 1158. This evaluation must be undertaken during the agency’s consideration of project alternatives. Id.; see also 23 C.F.R. § 771.135(b). And it must be completed before the agency issues a Record of 3 In this respect section 4(f) differs from NEPA and NHPA, which are primarily procedural. See North Idaho, 545 F. 3d at 1158. 4 It has also observed that “only the most unusual situations” will satisfy the two exemptions to that bar. Citizens to Preserve Overton Park, 401 U.S. at 411. -7-
  18. 18. Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 18 of 86 PageID #: 6291 Decision on the project. North Idaho, 545 F.3d at 1158-59; see also 23 C.F.R. § 771.135(i). B. NEPA NEPA is our nation’s “basic charter for the protection of the environment.” 40 C.F.R. § 1500.1. It requires federal agencies prepare an Environmental Impact Statements (“EIS”) on any “major Federal actions significantly affecting the human environment.” 42 U.S.C. § 4332(2)(C). Required elements of an EIS include a description of the proposed Federal action; a detailed discussion of the proposed action’s environmental consequences; and an analysis of alternatives to the proposed action (and the environmental impacts of such alternatives). 42 U.S.C. § 4332(2)(C); 40 C.F.R. §§ 1502.13, 1502.14, 1502.16. The analysis of alternatives is “the heart” of an EIS. 40 C.F.R. § 1502.14. Federal agencies have an affirmative obligation to “[r]igorously explore and objectively evaluate all reasonable alternatives.” Id. (emphasis added). According to the Council on Environmental Quality (“CEQ”), which oversees NEPA compliance government-wide, Reasonable alternatives “include those that are practical or feasible from the technical and economic standpoint, rather than simply desirable from the standpoint of the applicant” for a federal approval. 46 Fed. Reg. 18026, 18027 (Mar. 17, 1981) (emphasis original). In evaluating the environmental impacts of “all reasonable -8-
  19. 19. Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 19 of 86 PageID #: 6292 alternatives,” federal agencies must consider each and every reasonably foreseeable direct, indirect, and cumulative effect of a proposed action. 42 U.S.C. § 4332(2); 40 C.F.R. §§ 1502.10, 1502.14, 1502.16, 1508.7, 1508.8.5 All NEPA analyses must be “available to public officials and citizens before decisions are made and before actions are taken.” 40 C.F.R. § 1500.1(b) (emphasis added). Indeed, NEPA imposes on Federal agencies an affirmative responsibility to make sure no party takes any action that could (1) adversely impact the environment or (2) limit the Federal agency’s choice of reasonable alternatives until the entire NEPA process is complete. See 40 C.F.R. § 1506.1(a). C. NHPA NHPA requires all federal agencies to “take into account” the impact of their actions on historic properties, including sites listed on or eligible for listing on the National Register of Historic Places. 16 U.S.C. § 470f. When an agency proposes to take an action that could adversely affect one or more historic properties, the agency must “develop and evaluate alternatives or 5 Direct effects are “caused by the action and occur at the same time and place.” 40 C.F.R. § 1508.8. Indirect effects are “caused by the action” but are “later in time or farther removed in distance.” Id. Indirect effects “may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems.” Id. Cumulative effects refer to “the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions.” 40 C.F.R. § 1508.7. -9-
  20. 20. Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 20 of 86 PageID #: 6293 modifications to the [action] that could avoid, minimize or mitigate [any] adverse effects.” 36 C.F.R. § 800.6(a). This requirement applies equally to direct adverse effects and to indirect adverse effects. 36 C.F.R. § 800.5.IV. STANDARD OF REVIEW A. Summary Judgment Summary judgment is proper where no genuine issues of material fact exist and the moving party is entitled to prevail as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The materiality of a fact is determined by referring to applicable substantive law. See Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). B. NEPA, Section 4(f), NHPA, and the APA The legal requirements at issue in this case are those imposed by NEPA, Section 4(f), and NHPA. Claims under these three statutes are reviewed under the Administrative Procedure Act (“APA”). See Northern Plains Resource Council v. Surface Transportation Board, 668 F.3d 1067, 1074 (9th Cir. 2011) (NEPA claims); North Idaho, 545 F.3d 1147, 1152 (9th Cir. 2008) (Section 4(f) claims); San Carlos Apache Tribe v. United States, 417 F.3d 1091, 1096 (9th Cir. 2005) (NHPA claims). The APA provides that reviewing courts must “hold unlawful and set aside agency action, findings, and conclusions found to be…arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the - 10 -
  21. 21. Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 21 of 86 PageID #: 6294 law.” 5 U.S.C. § 706(2)(A). An agency’s action is arbitrary and capricious if it is based on “factors which Congress has not intended [the agency] to consider,” if the agency has “entirely failed to consider an important aspect of the problem,” if the agency offers “an explanation for its decision that runs counter to the evidence,” or if the agency’s actions are “so implausible that [they] could not be ascribed to…agency expertise.” Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 43 (1983); Sausalito v. O’Neill, 386 F.3d 1186, 1205-06 (9th Cir. 2004). The “arbitrary and capricious” standard requires a “thorough, probing, in-depth review” of agency decisionmaking. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415-16 (1971). Although a reviewing court should not substitute its judgment for that of the agency, neither can it simply “rubber stamp” agency decisions. See Ocean Advocates v. United States Army Corps of Engineers, 402 F.3d 846, 859 (9th Cir. 2004). Indeed, judicial review must be “searching and careful.” Overton Park, 401 U.S. at 416. And reviewing courts “should not attempt to make up for deficiencies” in agency decisions by “supply[ing] a reasoned basis for the agency’s action that the agency itself has not given.” Motor Vehicle Manufacturers, 463 U.S. at 43. - 11 -
  22. 22. Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 22 of 86 PageID #: 6295V. ARGUMENT A. Plaintiffs Have Standing In order to establish standing to sue, a plaintiff must demonstrate that (1) he will suffer an “injury in fact” in the absence of judicial relief, (2) the injury is “fairly traceable…to the challenged action of the defendant”, and (3) a favorable judicial ruling will likely redress his injury. See Friends of the Earth v. Laidlaw Environmental Services, 528 U.S. 167, 180-81 (2000). A case may proceed so long as at least one plaintiff has standing. Massachusetts v. E.P.A., 549 U.S. 497, 518 (2007). Plaintiffs meet all three requirements. They have provided standing affidavits demonstrating that they will suffer procedural, environmental, aesthetic, recreational, and economic injuries in the absence of judicial relief. Declaration of Matthew Adams (“Adams Dec.”), ¶ 2, Ex. A. Those injuries are traceable to the challenged action of the Defendants —namely, the approval of the Project. Id. A favorable ruling in this case would invalidate Defendants’ approval of the Project, thereby redressing Plaintiffs’ injuries. Id. Therefore, Plaintiffs have standing. B. Defendants’ Approval Of The Project Is A Final Agency Action Subject To Review Under The APA The APA provides for judicial review of “final agency action.” 5 U.S.C. § 704. A ROD is a final agency action. Oregon Natural Desert Association v. Bureau of Land Management, 625 F.3d 1092, 1118 (9th Cir. 2010); see also - 12 -
  23. 23. Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 23 of 86 PageID #: 6296 40 C.F.R. § 1505.2 (ROD must memorialize final agency decision). Defendants approved the Project by issuing a ROD. AR 000030-000246. That approval is therefore subject to review under the APA. 5 U.S.C. §§ 704, 706. C. Defendants Violated Section 4(f) Section 4(f) prohibits the United States Department of Transportation and its component agencies from approving a transportation project that uses 4(f) Resources unless (1) there is “no feasible and prudent alternative” and (2) the project includes “all possible planning to minimize harm.” 49 U.S.C. § 303(c); 23 C.F.R. § 774.3. Implicit in that mandate are three conceptually-distinct (though certainly not unrelated) requirements: • First, Department of Transportation agencies must identify all 4(f) Resources that could be used by a transportation project. 23 C.F.R. §§ 774.9, 774.11. • Second, Department of Transportation agencies must properly evaluate the potential for a transportation project to use 4(f) Resources. 23 C.F.R. §§ 774.9, 774.15, 774.17. • Third, for any project that could use 4(f) Resources, Department of Transportation agencies must properly evaluate alternatives and measures to minimize harm to ensure that (1) there are no feasible and prudent alternatives and (2) all possible planning to minimize harm has been adopted. 49 U.S.C. § 303(c); 23 C.F.R. § 774.3. Here, Defendants failed at each of the three steps in this analytical process: - 13 -
  24. 24. Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 24 of 86 PageID #: 6297 • Defendants failed to identify (or even to look for) Native Hawaiian burials and Traditional Cultural Properties (“TCPs”), both of which are 4(f) Resources. See § V.C.1, below. • Defendants failed properly to evaluate the Project’s potential to use numerous parks and historic sites, all of which are 4(f) Resources. See § V.C.2, below. • Defendants approved the Project without properly considering (and selecting) feasible and prudent alternatives capable of avoiding the use of 4(f) Resources and without including all possible planning to minimize harm. See § V.C.3, below. Therefore, Plaintiffs are entitled to summary judgment. 1. Defendants Failed To Identify And Evaluate The Project’s Use Of Native Hawaiian Burials And Other Traditional Cultural Properties Before Approving The Project (Count 5) Section 4(f) requires Department of Transportation agencies to survey, identify, and evaluate 4(f) Resources before approving a transportation project. The Section 4(f) Regulations provide that such an analysis must be completed prior to project approval. 23 C.F.R. § 774.9(a), (b); see also North Idaho, 545 F.3d at 1159, n.7 (4(f) Resources must be identified and evaluated prior to project approval); Valley Community Preservation Commission v. Mineta, 373 F.3d 1078, 1087-88 (10th Cir. 2004) (same); Corridor H Alternatives v. Slater, 166 F. 3d 368, 372-74 (D.C. Cir. 1999) (same). Here, Defendants approved the Project before identifying and evaluating iwi kupuna (Native Hawaiian - 14 -
  25. 25. Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 25 of 86 PageID #: 6298 burials) and other TCPs.6 Therefore, Plaintiffs are entitled to summary judgment. a) Defendants Failed Fully To Identify And Evaluate Iwi Kupuna Prior To Issuing The ROD, Thereby Violating Section 4(f) In Hawaiian culture, burial is a process allowing an individual’s spiritual power to become a spiritual resource for the entire community. AR 125000 at 125001. In this way, ancestral remains (iwi kupuna) provide an important spiritual connection between the living, their ancestors, and the community as a whole. Id. The Oahu Island Burial Council (“OIBC”), a state agency charged with the protection of historic properties of importance to the Native Hawaiian community,7 has characterized the disruption of iwi kupuna as “akin to disrobing a living person and physically handling them against their will.” Id. Iwi kupuna are eligible for listing in the National Register of Historic Places. See 36 C.F.R. § 60.4 (Register eligibility criteria and “criteria considerations”); Adams Dec., ¶ 3, Ex. B at 1 (eligibility as TCP); see also AR 00030 at 000085 (Programmatic Agreement admits Register eligibility of 6 TCPs are resources “eligible for inclusion in the National Register because of [] association with cultural practices or beliefs of a living community that (a) are rooted in the community’s history, and (b) are important in maintaining the continuing cultural identity of the community.”6 Adams Dec., ¶ 3, Ex. B at 1. Iwi kupuna are a subset of TCPs. The fact that iwi kupuna are TCPs is one of the bases (but not the only basis) for their protection under Section 4(f). 36 C.F.R. § 60.4. 7 See Haw. Rev. Stat. § 13-300-21. - 15 -
  26. 26. Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 26 of 86 PageID #: 6299 archaeological sites). Therefore, they are 4(f) Resources. 23 C.F.R. §§ 774.11(e), 774.17 (definition of historic sites includes Register-eligible resources). Defendants had ample notice of the importance of evaluating the Project’s potential to damage or destroy (or, using the sanitized language of Section 4(f), the potential to “use”) iwi kupuna. For example: • The OIBC pointed out that the Project would traverse several areas known to contain significant concentrations of iwi kupuna, and noted the City’s failure fully to investigate the impact of the Project on those sites “has needlessly placed iwi kupuna in harm’s way and diminished the ability of laws such as [Section] 4(f) to protect them.” AR 125000 at 125005. • The National Park Service expressed concerns about Defendants’ failure to prepare a complete archaeological survey and asked “wouldn’t it be prudent to complete the [survey] and know where burials are located ASAP?” AR 125208 at 125210. • The National Trust for Historic Preservation sent the City a letter expressing “extreme” concern regarding “the City’s decision to defer detailed identification of historic properties” until after the ROD, citing case law prohibiting such an approach. See AR 124858 at 124858-59. • FTA’s own environmental staff expressed concerns about the “casual treatment of burials in the [Section] 4(f) evaluation and the quick once- over in the resources section [of the EIS].” AR 124645. - 16 -
  27. 27. Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 27 of 86 PageID #: 6300 It is important to note that the Defendants received each of these four comments in October, 2009. AR 124645, 124858, 125000, 125208. The ROD was not issued until January 18, 2011. AR 000030. In other words, after receiving these comments, Defendants had more than a year in which to fully survey, identify, and evaluate the Project’s potential to damage or destroy iwi kupuna. Instead, they did nothing.8 Rather than undertaking any additional analysis, Defendants simply relied on a previously-prepared Archaeological Inventory Survey (“AIS”) addressing the westernmost 7.4 miles of the Project. AR 0059459 at 0059478-88 (scope of AIS). No such survey was prepared for the other 15 or so miles of the rail line, despite the fact that burials were deemed likely to exist there. Id.; see also AR 000030 at 000085, 000092-95 (phased approach to identification and evaluation of iwi kupuna); 000247 at 000691 (burials deemed likely). Defendants deferred that work until the “construction phase” of the Project. AR 000030 at 000085 (“phased approach to identification and evaluation”); see also AR 000247 at 000691 (final Section 4(f) evaluation does not include analysis of iwi for entire Project). In 8 Actually, the City didn’t exactly do nothing. Upon receiving constructive feedback from four authoritative, interested parties (OIBC, the National Trust For Historic Preservation, the National Park Service, and the FTA) — and having more than enough time to use that feedback to identify and evaluate iwi kupuna — the City complained to Hawaii’s Congressional delegation about “unreasonable comments” from federal agencies (even going so far as to call out an individual National Park Service employee and the location of her office). AR 125190. - 17 -
  28. 28. Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 28 of 86 PageID #: 6301 other words, they deferred identification and evaluation of iwi kupuna until after project approval. The Ninth Circuit has squarely rejected Defendants’ “phased” approach to surveying, identifying, and evaluating iwi kupuna. See North Idaho, 545 F.3d at 1158-59. In North Idaho, the court struck down the Federal Highway Administration’s “phase-by-phase” approach to identifying and evaluating the potential use of 4(f) resources by a four-phase highway project. North Idaho, 545 F.3d at 1158-59. The Federal Highway Administration (“FHWA”) prepared a detailed evaluation of the first construction phase of the highway project, but deferred its evaluation of the remaining three construction phases until after the ROD has been issued. Id. The Ninth Circuit held that this approach violates Section 4(f) because “an agency is required to complete the § 4(f) evaluation for the entire Project prior to issuing its ROD.” Id.9 The same rule applies here. Like the FHWA in North Idaho, Defendants have broken the Project into multiple construction “phases.” North Idaho, 545 F.3d at 1158-59; AR 059459 at 059478 (Defendants’ approach to phasing). Like the FHWA in North Idaho, Defendants conducted 9 The timing of the North Idaho litigation was such that the Ninth Circuit reached its decision on the basis of the previous version of the Section 4(f) Regulations. But the North Idaho court also evaluated the current version of the Section 4(f) Regulations, ultimately concluding that nothing in the current version would alter its holding. North Idaho, 545 F. 3d at 1158-59 n.7(current regulations “still provide that § 4(f) properties must be evaluated early while alternatives are under study, and that the § 4(f) approval should appear in the EIS or ROD”). - 18 -
  29. 29. Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 29 of 86 PageID #: 6302 some § 4(f) surveys (for iwi kupuna) on the first phase of the Project. North Idaho, 545 F. 3d at 1158-59; AR 059459 at 059478-88 (scope of AIS). And like the FHWA in North Idaho, Defendants issued a ROD without completing detailed § 4(f) surveys on remaining phases of the Project. Id.; see also AR 000030 at 000085 (Programmatic Agreement).10 Accordingly, Plaintiffs are entitled to summary judgment on their fifth cause of action. North Idaho, 545 F.3d at 1158-59; Corridor H Alternatives, 166 F.3d at 372-74 (D.C. Cir. 1999); see also Benton Franklin Riverfront Trailway And Bridge Committee v. Lewis, 701 F.2d 784, 788-89 (9th Cir. 1983) (criticizing agency’s failure to identify and evaluate 4(f) resources prior to release of FEIS). b) Defendants Failed Fully To Survey, Identify, And Evaluate TCPs Prior To Approving The Project, Thereby Violating Section 4(f) TCPs are resources “eligible for inclusion in the National Register because of [] association with cultural practices or beliefs of a living community that (a) are rooted in the community’s history, and (b) are 10 It is worth noting the close parallel between Defendants’ “phasing” of 4(f) compliance so as to avoid confronting certain difficult-to-deal-with historic resources and their “segmentation” of NEPA compliance so as to avoid confronting other Project impacts and alternatives (discussed in section V.D.4, below). A leading — and one of the earliest — 4(f) cases recognized that same connection. See Named Individual Members Of San Antonio Conservation Society v. Texas Highway Department, 446 F.2d 1021, 1023 (5th Cir. 1971) cert denied 406 U.S. 993 (1972) (segmentation of project for 4(f) purposes). As the Fifth Circuit put it: “The secretary’s approach to his section 4(f) responsibilities make[s] a joke of the feasible and prudent alternatives standard, and we not only decline to give such an approach our imprimatur, we specifically declare it unlaful.” Id. - 19 -
  30. 30. Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 30 of 86 PageID #: 6303 important in maintaining the continuing cultural identity of the community.” Adams Dec., ¶ 3, Ex. B at 1. Such resources are protected by Section 4(f). See id. (defining TCPs); see also 23 C.F.R. §§ 774.11(e) (Section 4(f) applicable to historic sites), 774.17 (definition of historic sites includes Register-eligible resources). Defendants conducted “preliminary” research on TCPs. See AR 000030 at 000091. That research appears to have consisted of identifying a single TCP (Chinatown). Id. Defendants deferred a more thorough “study to identify and evaluate the [Project’s Area of Potential Effect] for the presence of traditional cultural properties” until after approval of the Project. AR 000247 at 000623. As explained above, this “phased” approach is not allowed under Section 4(f).11 23 C.F.R. § 774.9(b); see also North Idaho, 545 F.3d at 1159, n.7; Valley Community Preservation Commission, 373 F.3d at 1087-88; Corridor H Alternatives, 166 F.3d at 372-74; 23 C.F.R. § 774.9(a). For this reason, too, Plaintiffs are entitled to summary judgment on their fifth cause of action. 11 Under some circumstances, such an approach might be permissible under the NHPA (a procedural statute). See, e.g., 36 C.F.R. §§ 800.4(b)(2), 800.8(a)(1). But Section 4(f)’s substantive mandate to avoid the impacts to historic resources (discussed in sections III.A, above, and V.C.3, below) means that all historic resources must be identified and evaluated before agency decisions are made. See North Idaho, 545 F. 3d at 1158-59. - 20 -
  31. 31. Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 31 of 86 PageID #: 6304 2. Defendants Arbitrarily And Capriciously Evaluated The Project’s Use Of Section 4(f) Resources (Count 6) Section 4(f) requires Department of Transportation agencies to evaluate the potential for transportation projects to “use” 4(f) Resources. In purported compliance with that requirement Defendants prepared a “Final Section 4(f) Evaluation,” which appears as Chapter 5 of the FEIS. See AR 000247 at 000680-753. Defendants’ evaluation was arbitrary, capricious, and in violation of Section 4(f). Accordingly, Plaintiffs are entitled to summary judgment. a) Defendants Arbitrarily And Capriciously Determined That The Project Will Not Directly Use The Merchant Street Historic District A direct “use” occurs when land from a 4(f) Resource is incorporated into a transportation project. See 23 C.F.R. § 774.17 (definition of “use”). The Project involves the construction of a 3-story concrete guideway within Nimitz Highway along the downtown Honolulu waterfront. A portion of that route lies within the Merchant Street Historic District. AR 000030 at 000218 (description of district borders); Adams Dec., ¶ 4, Ex. C at 7 (map). Defendants nonetheless failed to recognize or disclose that the Project will directly use the district. AR 000247 at 000743-44. That failure was clearly arbitrary and capricious. - 21 -
  32. 32. Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 32 of 86 PageID #: 6305 b) Defendants Arbitrarily And Capriciously Determined That The Project Will Not Constructively Use 4(f) Resources Under Section 4(f), the term “use” is “construed broadly, not limited to the concept of a physical taking.” Adler v. Lewis, 675 F.2d 1085, 1092 (9th Cir. 1982); see also 23 C.F.R. § 774.17 (definition of “use”); Stop H-3 Ass’n v. Coleman, 533 F.2d 434 445 (9th Cir. 1976) (finding “use” where freeway would “pass near” a Native Hawaiian cultural site); Brooks v. Volpe, 460 F.2d 1193, 1194 (9th Cir. 1972) (“the word ‘use’ is to be construed broadly”). In recognition of that principle, the Section 4(f) Regulations address “constructive use” of 4(f) Resources. See 23 C.F.R. §§ 774.15; 774.17. A constructive use occurs where “the transportation project does not incorporate land from a Section 4(f) property, but the project’s proximity impacts are so severe that the protected activities, features, or attributes that qualify the property for protection under Section 4(f) are substantially impaired.” 23 C.F.R. § 774.15(a). The potential for a transportation project to constructively use 4(f) Resources must be evaluated prior to project approval. 23 C.F.R. §§ 774.9(a)- (b) (timing of use determinations), 775.15(c) (constructive use). Such an evaluation must include (at least) the following three factors: (1) identification of the attributes of the 4(f) Resource subject to protection under Section 4(f); (2) analysis of the impacts of the proposed project on the 4(f) - 22 -
  33. 33. Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 33 of 86 PageID #: 6306 Resource; and (3) consultation with the official(s) with jurisdiction over the 4(f) Resource. 23 C.F.R. § 774.15(d); 73 Fed. Reg. 13368, 13387 (March 12, 2008) (“FTA agree[s] that a determination of constructive use should always be based upon the factors identified”). In purported compliance with these requirements, Defendants’ FEIS contains a discussion of constructive use. See AR 000247 at 000728-747. But, for the reasons set forth below, Defendants’ constructive use evaluation was arbitrary, capricious, and contrary to law. (i) Aloha Tower Aloha Tower is an Art Deco building on the downtown Honolulu waterfront.12 It has been listed on the National Register of Historic Places since 1976. It is also located in close proximity to several other historic downtown resources, including the Dillingham Transportation Building, the Merchant Street Historic District, the Chinatown Historic District, Irwin Memorial Park, and Walker Park. See AR 000247 at 000689. Defendants admit that Aloha Tower is historically-significant in several respects, including as “an example of 1920’s Art Deco architecture in Hawaii” and as “a local landmark [viewed] from the inland area.” AR 000247 at 000745-46. These historic attributes are protected under Section 4(f). 23 C.F.R. §§ 774.11(e), 774.15(a), 774.17. 12 A map showing the locations of the downtown Honolulu historic resources is - 23 -
  34. 34. Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 34 of 86 PageID #: 6307 Defendants concluded that the Project will not constructively use Aloha Tower. AR 000247 at 000745-46. That conclusion is arbitrary and capricious in two primary respects. First, Defendants’ conclusion violates the Section 4(f) Regulations. The Regulations provide that a constructive use occurs whenever “a proposed transportation facility…obstructs or eliminates the primary views of an architecturally significant historical building.” 23 C.F.R. § 774.15(e)(2). As noted above, Aloha Tower is an architecturally-significant building and is considered a “landmark” when viewed from inland. AR 000247 at 000745-46. Defendants concede that the Project will, at the very least, “obstruct” those same views of Aloha Tower: • Defendants admit that “the Downtown Station and guideway will be dominant features in views” (AR 000247 at 512); • Defendants admit that “the guideway structure will partially block a view of Aloha Tower” from the pedestrian mall on Fort Street (AR 000247 at 512); • Defendants admit that the Project will “block portions of makai views” toward Aloha Tower from at least four perspectives13 (AR 000247 at 540). attached hereto as exhibit 1. 13 Those perspectives include views down Bethel, Fort, Bishop, and Richards streets. AR 000247 at 000540. - 24 -
  35. 35. Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 35 of 86 PageID #: 6308 Defendants found that these visual impacts will be “significant,” a term they define as involving “substantial changes to existing views…resulting in a greatly changed view.” AR 000247 at 000509-510. Under these circumstances, the 4(f) Regulations required a finding of constructive use. 23 C.F.R. §§ 774.15(a) (constructive use where “substantial” impact occurs), 774.15(e)(2) (constructive use where views are obstructed). Second, Defendants’ conclusion appears to be based on irrelevant information. For example, Defendants suggest there will be no constructive use of Aloha Tower because “the Project will not block views, although some will be altered.” AR 000247 at 000746. But this purported distinction between “altered” views and “blocked” views is not legally relevant; the relevant question is whether the Project would “substantially impair” the views of Aloha Tower. See 23 C.F.R. § 774.15(a). Defendants also claim that “Aloha Tower will still be able to be viewed from many vantage points without seeing the Project.” AR 000247 at 000746. This, too, is irrelevant. Again, the relevant question is whether the Project would “substantially impair” a significant attribute of Aloha Tower; the suggestion that Aloha Tower will not be “used” in some other way is beside the point. See 23 C.F.R. § 774.15(a). - 25 -
  36. 36. Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 36 of 86 PageID #: 6309 (ii) Walker Park Walker Park is a small public park in downtown Honolulu offering a seating area, a fountain, a number of mature palm trees, and open views toward Honolulu harbor and Aloha Tower. AR 000247 at 000731, 000744. It is also eligible for listing on the National Register of Historic Places as “an early example of a created greenspace” in downtown Honolulu. AR 000247 at 000744. Walker Park qualifies for protection under Section 4(f) on both bases. The Project would place a 3-story elevated concrete rail line approximately 50 feet from the edge of Walker Park. AR 000247 at 000744. Defendants nonetheless concluded that the Project would not constructively use the park. AR 000247 at 000731, 000744. With respect to Walker Park’s historic attributes, Defendants simply conclude, without explanation, that the Project would not “substantially impair the park’s historic associations.” AR 000247 at 000744. And with respect to Walker Park’s parkland attributes, Defendants suggest that “the Project will not change views from within the park” and therefore would not result in a constructive use. AR 000247 at 000731. Those conclusions were arbitrary and capricious in multiple respects. First, none of the visual impact analyses in the Administrative Record actually addresses the Project’s impacts on Walker Park. See, e.g., AR 000247 at 000511-12. For this reason alone, Defendants’ findings on that subject should be rejected. Motor Vehicle Manufacturers, 463 U.S. at 43 (failure to - 26 -
  37. 37. Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 37 of 86 PageID #: 6310 consider “an important aspect of the problem” is arbitrary and capricious); 23 C.F.R. § 774.15(d) (requiring evaluation of impacts). Second, to the extent that the visual impact analyses in the Administrative Record can reasonably be extrapolated to Walker Park, those analyses undermine Defendants’ conclusions. Defendants’ visual impact analyses admit that the portion of the Project adjacent to Walker Park would be “dominant in views,” would “contrast substantially” with park trees, would “change the visual character of the streetscape,” would create “light and glare,” and would be “prominent in [] views of Honolulu Harbor, partially blocking views of the sky.” AR 000247 at 000512, 000540-41.14 Third, Defendants’ constructive use analysis for Walker Park fails to address noise. AR 000247 at 000731, 000744. And the noise impact analyses elsewhere in the Administrative Record are not at all consistent with applicable FTA requirements.15 14 The analyses also note that these visual effects would be even “more noticeable” from viewpoints (like Walker Park) located close to the rail line. AR 000247 at 000512 (line 16). 15 The City prepared a technical report on noise in 2008 and an addendum to that report in 2009. FTA reviewed the 2008 report and determined that it was inadequate. AR 72929. Specifically, FTA found that the 2008 report (1) failed to disclose the noise caused by the Project and (2) did not provide any way to determine the effectiveness of mitigation. AR 072897 at 072929. The 2009 addendum purported to address the first issue by claiming that the Project’s “reference Sound Exposure Level” (or “SEL”) would be 82 decibels of noise within 50 feet of the rail line. AR 072897 at 072898. The rail line would be located 50 feet from Walker Park. AR 000247 at 000744. But, for reasons not explained in their noise analyses, Defendants estimate that the Project will only result in 65 decibels of additional noise in Walker Park. AR 072897 at 072926. This is not an insignificant difference. Ten decibels - 27 -
  38. 38. Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 38 of 86 PageID #: 6311 Fourth, the Administrative Record does not appear to contain any evidence supporting Defendants’ conclusory assertion that the Project will not “impair the park’s historic associations.” For example, there is no evidence that Defendants ever evaluated the original (historic) plans for the park or determined whether the Project might interfere with the park attributes identified in those plans. (iii) Merchant Street Historic District As discussed in section V.C.2.b.i, above, Defendants arbitrarily and capriciously concluded that the Project would not constitute a direct use of the Merchant Street Historic District. In the alternative, Defendants arbitrarily and capriciously concluded that the Project would not constitute a constructive use of the Merchant Street Historic District. The Merchant Street Historic District is a collection of nineteenth century buildings at the core of historic downtown Honolulu. AR 000030 at 000217. It has been listed on the National Register of Historic Places since 1973. Adams Dec., ¶ 4, Ex. C. The Keeper of the National Register has affirmed that the District represents “an incalculable asset as an historic record of Honolulu’s past” and has recognized the need to preserve the District’s represents a 100% change in noise level. In other words, Defendants may have under-estimated the Project’s noise impacts on Walker Park by more than 150%. - 28 -
  39. 39. Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 39 of 86 PageID #: 6312 “small scale human environment.” Id. at 3. This feature is therefore subject to protection under Section 4(f). The Project would place a 3-story elevated heavy rail line along the edge of the Merchant Street Historic District. AR 000030 at 000214-18; AR 000247 at 000743-44; see also § V.C.2.b.i, above. Defendants nonetheless concluded that the Project would not constructively use the Merchant Street Historic District. AR 000247 at 000743-44. That conclusion is arbitrary and capricious in two fundamental respects. First, Defendants’ constructive use evaluation focuses exclusively on a single building within the Merchant Street Historic District. AR 000247 at 000743-744. It does not evaluate whether the Project might substantially impair any of the protected attributes of the District as a whole. Id. Such an approach is inherently arbitrary and capricious. Motor Vehicle Manufacturers Association, 463 U.S. at 43 (failure to consider “an important part of the problem” is arbitrary and capricious). It is also directly contrary to applicable FTA guidance. See AR 021938 at 021955 (“the district as a whole must be carefully evaluated”). Second, the Administrative Record demonstrates that the Project will, in fact, substantially impair one of the protected features of the Merchant Street Historic District. As noted above, part of the District’s historic significance is tied to the neighborhood’s “small scale human environment.” Into that - 29 -
  40. 40. Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 40 of 86 PageID #: 6313 environment, the Project will introduce a massive, modern, 3-story concrete viaduct — the very antithesis of a “small scale human” feature. Indeed, Defendants essentially concede as much. They admit that the Project will “reduce the open character of the streetscape, create shade and shadows, and block portions of makai views” on multiple streets within the Merchant Street Historic District. AR 000247 at 000540. They also concede these effects on the area will be “significant,” a term which they define as involving “substantial” changes to the environment. AR 000247 at 000509-510. For this reason, too, it was arbitrary and capricious for Defendants to conclude that the Project will not constructively use Merchant Street Historic District. See AR 000030 at 000217 (important features of historic district include “small scale human environment”); 23 C.F.R. § 774.15(a) (“substantial” impact on historic feature constitutes constructive use). (iv) Irwin Park Irwin Park is a 2-acre park located next to Aloha Tower, across the street from Walker Park and the Dillingham Transportation Building, and immediately adjacent to the Project. AR 000247 at 000689, 000723 (maps); 000247 at 000731, 000746-47 (description). It is an historic resource eligible for listing in the National Register as (among other things) “an example of the work of a leading local landscape architect.” AR 000247 at 000746-77. It is - 30 -
  41. 41. Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 41 of 86 PageID #: 6314 also a public park. AR 000247 at 000690. Both attributes are subject to protection under Section 4(f). See 23 C.F.R. § 774.11. Defendants concluded that the Project would not create adverse noise impacts, would not interfere with the park’s historic attributes, and therefore would not constructively use Irwin Park. AR 000247 at 000746-77. Those conclusions are arbitrary and capricious. Defendants claim that the Project would “have no adverse noise … impacts at the park.” AR 000247 at 000747. But they never studied potential noise impacts on Irwin Park; instead, they evaluated potential noise impacts on the Aloha Tower Marketplace, a busy retail area located hundreds of feet further away from the Project. AR 033642 at 033695; AR 072897 at 072919. Moreover, Defendants’ noise analyses are not at all consistent with applicable FTA requirements.16 Defendants also claim that the Project would not interfere with the historic attributes of Irwin Park. Those attributes include “the work of a 16 The City prepared a technical report on noise in 2008 and an addendum to that report in 2009. FTA reviewed the 2008 report and determined that it was inadequate. AR 072929. Specifically, FTA found that the 2008 report (1) failed to disclose the noise caused by the Project and (2) did not provide any way to determine the effectiveness of mitigation. AR 072929. The 2009 addendum purported to address the first issue by claiming that the Project’s “reference Sound Exposure Level” (or “SEL”) would be 82 decibels of noise 50 feet from the guideway, as per FTA requirements. AR 072898. The Project would be located immediately adjacent to Irwin Park. AR 000247 at 000723. Defendants admit that Project noise of 70 decibels or above (12 decibels below the Project’s reference SEL) could cause severe noise impacts. AR at 033642 at 33695; AR 072897 at 072919. Therefore, it was arbitrary and capricious for Defendants to conclude that the Project will have “no adverse noise…impacts.” AR 000247 at 000746 (emphasis added). - 31 -
  42. 42. Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 42 of 86 PageID #: 6315 leading local landscape artist.” AR 000746. But they do not provide any specific analysis of these protected landscape features, a failure which is arbitrary and capricious in and of itself. See AR 000247 at 000746-47; 23 C.F.R. § 774.15(d) (required contents of constructive use analysis); Motor Vehicle Manufacturers Association, 463 U.S. at 43 (failure to consider “an important part of the problem” is arbitrary and capricious). Indeed, to the extent Defendants address Irwin Park’s landscaping at all, it is to admit that (1) the Project would “contrast substantially” with trees in the park and (2) the overall effect of the Project on the Irwin Park area as a “substantial change” to sensitive resources. AR 000247 at 000509 (“substantial change”), 000511 (Project would “contrast substantially with Irwin Park street trees”). (v) Mother Waldron Neighborhood Park Mother Waldron Neighborhood Park is a public park in downtown Honolulu. It is also an historic resource eligible for listing in the National Register for its historic architecture and landscape design. AR 000247 at 000747. The park qualifies for protection under Section 4(f) as parkland and as an historic site. See 23 C.F.R. § 774.11. The Project would place a 3-story elevated heavy rail line approximately 10 feet from the edge of Mother Waldron Neighborhood Park. AR 000247 at 000747. Defendants nonetheless concluded that the Project would not - 32 -
  43. 43. Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 43 of 86 PageID #: 6316 constructively use the park. AR 000247 at 000746-47. That conclusion was arbitrary and capricious. First, the Project will “contrast significantly with the scale and character of Mother Waldron Neighborhood Park” and will block views of the park from nearby residences. AR 000247 at AR 000512. While the City tried to downplay these effects as “a new visual element,” FTA accurately characterized them as “devastating.” AR 000247 at 000747 (City characterization); AR 072988 at 072998 (FTA admits Project will have “devastating effects on makai views of…the park”). Second, Defendants’ Section 4(f) evaluation fails to address the Project’s noise impacts on Mother Waldron Neighborhood Park. AR 000247 at 000732, 000747. That failure is arbitrary and capricious in and of itself. Motor Vehicle Manufacturers Association, 463 U.S. at 43 (failure to consider “an important part of the problem” is arbitrary and capricious). Moreover, evidence found elsewhere in the Administrative Record indicates that the Project’s noise impacts may, in fact, be severe. The Project will cause 82 decibels of noise at points within 50 feet of the rail line. AR 072898. The rail line will be just 10 or so feet from the park (well within the 50-foot envelope). AR 000247 at 000747 (10 feet from park). And Defendants’ technical report admits that noise above 67 decibels would cause a severe impact. AR 072897 at 072920. - 33 -
  44. 44. Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 44 of 86 PageID #: 6317 c) Defendants’ Evaluation Of Makalapa Navy Housing Was Arbitrary And Capricious In Multiple Respects Makalapa is a residential area containing a large number of historic homes. AR 000247 at 000739-740. The area is eligible for listing in the National Register as (among other things), an example of the work of a master architect and as an example of the Navy’s historic “Garden City” planning program. Id. The problems with Defendants’ evaluation of Makalapa are so fundamental that they defy easy characterization as “constructive use issues” or “direct use issues.” Therefore, we address them in this separate subsection. First, it is not at all clear which property or properties Defendants evaluated. Makalapa is owned by the United States Navy, and the Navy manages it as a single historic resource within a single set of boundaries. See AR 060254-55. The FTA agreed with the Navy’s approach. AR 060254-55. But the City (perhaps seeking to avoid the mandates of Section 4(f)) claims that the area actually consists of two, smaller historic districts dubbed “Potential Makalapa Housing Historic District” and “Potential Little Makalapa Navy Housing Historic District.” Id. Maps created by the City and attached to the ROD do, in fact, show a “Potential Makalapa Housing Historic District” and a “Potential Little Makalapa Historic District.” AR 000247 at 000152. But the text of Defendants’ Final Section 4(f) Evaluation only discusses a “Potential Makalapa Navy Housing Historic District”; it makes no mention of - 34 -
  45. 45. Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 45 of 86 PageID #: 6318 any “Little Makalapa” district. AR 000247 at 000739-40; see also 000247 at 000692 (listing properties evaluated for 4(f) use). In short, it appears that Defendants (1) failed to evaluate “Little Makalapa” under Section 4(f), (2) used inconsistent definitions of the boundaries of the larger Makalapa area, or (3) both. Second, if Defendants did, in fact, carve up Makalapa into smaller historic districts, they have not provided sufficient justification doing so. In particular, they have not explained how and why specific boundary lines between the two areas were drawn. AR 000247 at 000739-40. That failure is arbitrary and capricious, particularly in light of evidence in the Administrative Record suggesting that the Navy (the federal agency responsible for Makalapa) manages the area as a single resource (an approach with which the FTA at one point concurred). AR 0060254 at 0060254-55. As the Historic Hawaii Foundation accurately noted, the City’s approach to Makalapa “appear[s] to be a gerrymander….which suggests a motive of convenience rather than a professional determination.” AR 059005 at 059007. Third, Defendants’ Section 4(f) evaluation does not account for some of Makalapa’s historic attributes. Makalapa’s setting is one of the aspects of its eligibility for the National Register; therefore, setting is a feature protected under Section 4(f). AR 039709 (importance of setting); 23 C.F.R. §§ 774.11(e), 774.15(d) (protected features). The Administrative Record contains - 35 -
  46. 46. Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 46 of 86 PageID #: 6319 a technical report which found that the Project would “adversely affect” Makalapa’s “integrity of setting.” AR 039555 at 039709. But Defendants’ Section 4(f) Evaluation does not address that issue. AR 000247 at 000739- 740. Fourth, Defendants’ Section 4(f) Evaluation does not account for the Project’s Pearl Harbor rail station and “traction power substation.” These are significant omissions: • The rail station would be a concrete structure 240 feet long, more than 100 feet wide, and approximately 55 feet high.17 AR 000247 at 000354; AR 0040003. Maps in the Administrative Record depict the station within median of a roadway. See, e.g., AR 000247 at 000354. But there is no mention of how the station will be built without using the historic properties on both sides of the Highway. Id.18 • The traction power substation would be a 3,200 square foot steel building enclosed within a steel fence. AR 000247 at 000360. Maps in the Administrative Record suggest that the substation would be located immediately adjacent to the Pearl Harbor rail station (and either within or on the border of the Makalapa historic district). See 17 Defendants’ EIS never actually discloses the height of the Project’s rail stations. But by combining the “conceptual” drawing presented in section 2 of the EIS (which show station rooflines extending above the top of each train) with the “typical section” drawings elsewhere in the Administrative Record (which show the top of each train approximately 50 feet above street level), it is possible to estimate that the total height of the Pearl Harbor rail station will be approximately 55 feet above street level. See AR 000247 at 000347-49 (“conceptual” drawing); AR 0040003 (“typical section”). 18 It also appears that buildings and infrastructure allowing passengers to access the station may be located within the Makalapa historic district(s). AR 000247 at 000354. - 36 -
  47. 47. Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 47 of 86 PageID #: 6320 AR 000030 at 000153; AR 033677. None of these Project elements is addressed in Defendants’ Section 4(f) evaluation of Makalapa. AR 000247 at 000739-740. d) Defendants’ Arbitrary And Capricious Use Determinations Were Not “Harmless Error” It is important to note that Defendants’ failure properly to evaluate the Project’s use of 4(f) Resources was not a harmless mistake. As will be discussed in the section V.C.3.a, below, there are feasible and prudent alternatives to using the historic and parkland resources of downtown Honolulu. Likewise, there are feasible and prudent alternatives to routing the Project through Makalapa. See AR 060254 at 060255 (“the Center Drive Alternative [] is a bit of a problem, but is prudent and feasible”). Had Defendants properly evaluated 4(f) Resources, they would have been required to implement such alternatives. See 49 U.S.C. § 303(c); 23 C.F.R. § 774.3. 3. Defendants Approved The Project In Violation Of Section 4(f) (Count 7) Section 4(f) prohibits the approval of a transportation project that uses 4(f) Resources unless (1) there is no feasible and prudent alternative and (2) the project includes all possible planning to minimize harm. 49 U.S.C. § 303(c); 23 C.F.R. § 774.3. If there is no prudent and feasible alternative that would avoid the use of 4(f) Resources, only the alternative that (1) causes the “least overall harm” to historic resources and (2) includes all possible planning to minimize harm can be approved. 23 C.F.R. § 774.3(c). - 37 -
  48. 48. Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 48 of 86 PageID #: 6321 There is no dispute that the Project will use 4(f) Resources. AR 000247 at 000680-752 (4(f) evaluation). Therefore, Defendants were required to comply with the requirements described above. They failed to do so. Accordingly, Plaintiffs are entitled to summary judgment. a) Defendants Failed To Demonstrate The Absence Of Prudent And Feasible Alternatives To The Project’s Use Of 4(f) Resources Where, as here, a transportation project would use 4(f) Resources, Department of Transportation agencies must determine whether there are feasible and prudent alternatives capable of avoiding such use. 49 U.S.C. § 303(c); 23 C.F.R. § 774.3. The concepts of feasibility and prudence are defined by the 4(f) Regulations. See 23 C.F.R. § 774.17. An alternative is feasible if it is can be built “as a matter of sound engineering judgment.” 23 C.F.R. § 774.17; see also AR 021938 at 021946 (4(f) Policy Paper guidance). In other words, “[a]n alternative is feasible if it is technically possible to design and build that alternative.” AR 21938 at 21946. The 4(f) Regulations define the concept of prudence by identifying six situations in which an alternative may be considered imprudent. 23 C.F.R. § 774.17. Those situations include the following: (1) the alternative “compromises the project to a degree that it is unreasonable to proceed with the project”; (2) the alternative creates “unacceptable safety or operational - 38 -
  49. 49. Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 49 of 86 PageID #: 6322 problems”; (3) the alternative causes severe environmental or social impacts; (4) the alternative results in additional costs “of an extraordinary magnitude”; (5) the alternative causes “other unique problems”; and (6) the alternative involves several of the five identified factors which, “while individually minor, cumulatively cause unique problems or impacts of extraordinary magnitude.” Id. The 4(f) Regulations do not identify any other permissible basis for determining that an alternative is imprudent. See 23 C.F.R. § 774.17; AR 21938 at 21946 (guidance in “4(f) Policy Paper”). The concepts of feasibility and (in particular) prudence require agencies to balance a variety of engineering, historic preservation, environmental, and economic factors. See 23 C.F.R. § 774.17 (identifying factors to be balanced). The 4(f) Regulations require that this balancing process be conducted with “a thumb on the scale on the side of avoiding [] Section 4(f) Property.” 73 Fed. Reg. 13368, 13391 (March 12, 2008) (explaining 4(f) Regulations). In other words, an alternative to the use of a 4(f) Resource should only be rejected as infeasible or imprudent if it causes “severe problems of a magnitude that substantially outweighs the importance of protecting the [4(f) Resource].” 23 C.F.R. § 774.17. A Department of Transportation agency’s analysis of feasibility and prudence must be documented in a written Section 4(f) Evaluation. 23 C.F.R. § 774.7(a). If the agency concludes that there is no feasible and prudent - 39 -
  50. 50. Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 50 of 86 PageID #: 6323 alternative, that conclusion must also be explained and supported in the 4(f) Evaluation. Id. Indeed, the 4(f) Regulations explicitly provide that “a Section 4(f) Evaluation shall include sufficient supporting documentation to demonstrate why there is no feasible and prudent avoidance alternative.” Id. (emphasis added). Defendants failed to satisfy these requirements. Instead, they improperly rejected a number of alternatives to the Project’s use of 4(f) Resources, including (1) Honolulutraffic.com’s managed lanes alternative (the “MLA”), (2) a downtown tunnel, and (3) various alternative transit technologies and alignments. Each of those alternatives is addressed below. But before zooming in on the details of the individual alternatives, it is important to consider a few aspects of the big picture: • This is considered the largest public works project in the State of Hawaii. • Even Defendants’ cramped, arbitrary and capricious 4(f) Evaluation admits that the Project will use 4(f) Resources in the historic core of downtown Honolulu. See AR 000247 at 000718-27 (use of Chinatown Historic District and Dillingham Transportation Building). • Defendants also admit that those 4(f) Resources are extremely valuable. See, e.g., AR 072807 at 072811 (Dillingham Transportation Building is “a very significant 4(f) property”), AR 039555 at 039837 (Chinatown “is one of the few areas of Honolulu which has maintained a sense of identity over the years”). - 40 -
  51. 51. Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 51 of 86 PageID #: 6324 • To be feasible and prudent, a 4(f) alternative need only be “technically possible to design” and not cause “severe problems of a magnitude that substantially outweighs the importance of protecting” 4(f) Resources. And yet Defendants claim that there is not a single feasible and prudent alternative to the use of 4(f) Resources in Downtown Honolulu. AR 000247 at 000718-27. How could that possibly be? As the following examples illustrate, Defendants failed properly to apply the 4(f) feasibility and prudence criteria (when they applied the criteria at all) and impermissibly relied on the results of the City’s AA process. Both failures violate Section 4(f). And both require that Plaintiffs be awarded summary judgment. (i) Managed Lanes Alternative Downtown Honolulu contains a very significant concentration of 4(f) Resources. See AR 000247 at 000689. Although there is a dispute between the parties as to the extent of the Project’s use of downtown 4(f) Resources, there is universal agreement that the Project will use some of them. See AR 000247 at 000680-752 (4(f) Evaluation). Specifically, Defendants admit that the Project would use the Chinatown Historic District and the Dillingham Transportation Building. AR 000247 at 000718-27. The use of 4(f) Resources in downtown Honolulu could be avoided by implementing Honolulutraffic.com’s Managed Lanes Alternative (“MLA”). The MLA would involve construction of a 2- or 3-lane roadway for use by - 41 -

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